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Assistance of counsel

Krajišnik insisted to represent himself in the appellate proceedings. The Appeals Chamber accepted this choice but assigned an amicus curiae (seeKrajišnik Decision on Self-Representation). On 21 February 2008, Krajišnik filed a Motion in which he sought to have the upcoming status conference postponed from 1 March 2008 to 31 March 2008 and “engage the services of attorney Alan Dershowitz to assist him in the remaining phases of the appellate process, specifically limited to a brief on the subject of Joint Criminal Enterprise”.[1]

6. In the Appeals Chamber’s opinion, the situation presents something of a conundrum. On the one hand, Mr. Krajišnik has already elected to represent himself pursuant to the Appeals Chamber Decision permitting him to do so,[2] and as noted by the Appeals Chamber at the time, he “must accept responsibility for the disadvantages this choice may bring.”[3] On the other hand, the Appeals Chamber has recognized the existence of heightened concerns regarding the basic fairness of proceedings when a defendant has chosen to self-represent.[4] For this reason, amicus curiae was appointed“to assist the Appeals Chamber by arguing in favour of Mr. Krajišnik’s interests.”[5]

7. In the past the Tribunal has wrestled with the appropriateness of certain restrictions on the right to self-representation.[6] Here, the converse question arises: are there legitimate restrictions on the right of a self-represented defendant to hire a lawyer? The Appeals Chamber has held that the right of self-representation “may be curtailed on the grounds that a defendant’s self-representation is substantially and persistently obstructing the proper and expeditious conduct of his trial.”[7] Such a standard is also apt in resolving the present issue. In this case, the Appeals Chamber notes that Mr. Krajišnik has long sought to engage the services of Mr. Dershowitz, and there is no reason to believe that Mr. Krajišnik has deliberately manipulated the situation in order to create unnecessary delays. Furthermore, the Appeals Chamber has discretion to call for an expedited briefing schedule and thereby avoid protracted proceedings.

8. There is also no incongruity in allowing partial self-representation, even though the Appeals Chamber has referred to self-representation and legal assistance as standing in “binary opposition”.[8] What the Appeals Chamber has prohibited is a situation whereby defendants can mix-and-match various elements of self-representation and legal assistance – e.g., when a self-represented accused has attempted to partake of legal aid funding.[9] A defendant must take the bitter with the sweet when making this choice, but only with respect to each issue. There is no fundamental reason why a defendant may not make different choices – self-representing or engaging legal counsel – with regard to different issues.

9. Although the Appeals Chamber has already benefited from the legal arguments advanced by Mr. Colin Nicholls as amicus curiae, Mr. Nicholls is not a party to the current proceedings and does not represent Mr. Krajišnik.[10] By contrast, Mr. Dershowtiz can present Mr. Krajišnik’s own arguments regarding a complex issue, Joint Criminal Enterprise (“JCE”), which the Appeals Chamber acknowledges might be too complex for a non-lawyer to master. Consequently, there is a strong presumption that, despite the late date, Mr. Krajišnik should be afforded the opportunity to present the most compelling case that he can. As long as Mr. Dershowitz’s involvement at this stage will not cause substantial or persistent obstruction or delays of the appeal proceedings, and provided he meets the requirements set out in Rule 44 of the Rules, the Appeals Chamber recognizes that Mr. Krajišnik may engage Mr. Dershowitz’s legal assistance regarding a discrete issue.

10. The Appeals Chamber appreciates that there might be a risk of redundancy and complication since amicus curiae has already advanced arguments regarding JCE, the issue that Mr. Dershowitz also intends to brief. Furthermore, there is a legitimate concern about not delaying proceedings that have already proved extremely time-consuming. The Appeals Chamber considers that these concerns can be allayed.

11. As to the risk that Mr. Dershowitz’s brief might add unnecessary confusion, it should go without saying that in the event of a contradiction between the submissions of amicus curiae and Mr. Dershowitz, the Appeals Chamber will treat only Mr. Dershowitz’s arguments as representing his client’s views. To avoid unhelpful complication, the Appeals Chamber directs Mr. Dershowitz to state with precision which arguments of amicus curiae he embraces and which arguments he rejects. Although Mr. Krajišnik has addressed the JCE issue in his Appeal Brief,[11] the Appeals Chamber will regard Mr. Dershowitz’s submission as a supplementary brief on behalf of Mr. Krajišnik.

12. Furthermore, the Appeals Chamber imposes a strict briefing schedule in order to prevent unnecessarily long or time-consuming submissions and thereby foster expeditious appeal proceedings. […] Given these parameters, the Appeals Chamber is convinced that Mr. Dershowitz can advance fully any additional arguments that Mr. Krajišnik wishes to make without causing undue delay in the appeal proceedings. The Appeals Chamber must emphasize that the current scheduling for the filing of briefs shall remain unaffected.

On 29 February 2008, the Prosecution filed a motion seeking clarification on the content of Mr. Dershowitz’s supplementary brief and the extent of Mr. Krajišnik’s continued self-representation and reconsideration of the applicable word limits.[12] In its Decision of 11 March 2008 (“Krajišnik Decision on Clarification of Alan Dershowitz Participation”), the Appeals Chamber granted the Motion in part and directed Mr. Dershowitz to as follows:

9. The Appeals Chamber has already described the purview of Mr. Dershowitz’s representation, which is limited to the question of JCE.[13] Additionally, in the Decision of 28 February 2008, the Appeals Chamber directed Mr. Dershowitz “to state with precision which arguments of amicus curiae he embraces and which arguments he rejects.”[14] The Appeals Chamber orders Mr. Dershowitz to do the same with respect to the arguments that Mr. Krajišnik has already made in his appeal brief. Mr. Dershowitz must be clear as to which of the arguments are new and the extent to which they complement or supersede those arguments made by Mr. Krajišnik. In short, because Mr. Dershowitz will be acting as counsel for Mr. Krajišnik, at least in a limited capacity, the two must speak with a single voice. The arguments that Mr. Dershowitz advances will thus make clear the issues on which Mr. Krajišnik is represented by counsel..[15]

The Appeals Chamber dismissed the Prosecution’s argument in relation to the applicable word limits on the basis that the principle of “equality of arms” had not been breached and that no actual prejudice had been demonstrated at that stage.[16]

[1] Motion of Momčilo Krajišnik to Reschedule the Date of Status Conference and for Permission for Alan Dershowitz to Make a Special Appearance, 21 February 2008.

[2] Decision on Momčilo Krajišnik’s Request to Self-Represent, on Counsel’s Motions in Relation to Appointment of Amicus Curiae, and on the Prosecution Motion of 16 February 2007, 11 May 2007 (“Decision of 11 May 2007”).

[8]Decision on Krajišnik Request and on Prosecution Motion, 11 September 2007 (“Decision of 11 September 2007”), para. 40. See also Slobodan Milošević v. Prosecutor, Case No. IT-02-54-AR73.7, Decision on Interlocutory Appeal of the Trial Chamber’s Decision on the Assignment of Counsel, 1 November 2004.

[9] See, e.g., Decision of 11 September 2007, para. 41.

[10] Decision of 11 May 2007, paras 19-20.

[11] Appeal by Momčilo Krajišnik to the ICTY Judgement of 27 September 2006 (Public Filing), 28 February 2008, paras 9-24.

[12] Prosecution Motion for Clarification and Reconsideration of the Appeals Chamber’s Decision on Momčilo Krajišnik’s Motion to Reschedule Status Conference and Permit Alan Dershowitz to Appear, 29 February 2008.

8. When considering the Motion, the Appeals Chamber finds it appropriate to recall that it permitted Mr. Alan M. Dershowitz to advance arguments regarding the issue of JCE on behalf of the Appellant, because this issue “might be too complex for a non-lawyer to master”.[1] Furthermore, the Appeals Chamber “recognized the existence of heightened concerns regarding the basic fairness of proceedings when a defendant has chosen to self-represent”.[2] In light of this reasoning, the Appeals Chamber is satisfied that the Appellant should be granted the assistance of counsel on the matter of JCE in conducting the interview with Mr. Karadžić whose potential evidence will be primarily relevant for this issue. This is demonstrated inter alia by the numerous references to the relationship between the Appellant and Mr. Karadžić in the Trial Judgement of 27 September 2006.[3] The Appeals Chamber also finds that the conduct of the said interview by counsel on the matter of JCE is within the scope of the Order on Motion to Interview Radovan Karadžić in which it allowed the Appellant to speak to Mr. Karadžić in order to determine whether or not he wants to call him as a witness pursuant to Rule 115 of the Rules.[4] Such procedure is consistent with the Appeals Chamber’s heightened concerns for the fairness of proceedings against a self-represented accused.[5]

9. Having thus found that counsel on the matter of JCE can conduct the interview with Mr. Karadžić on behalf of the Appellant, the Appeals Chamber will now turn to the Appellant’s request to grant Mr. Nathan Dershowitz status of counsel. The Appeals Chamber is mindful of the fact that to date, he is registered as legal consultant to Mr. Alan M. Dershowitz, and not as co-counsel.[6] However, during the appeals hearing on 21 August 2008, Mr. Nathan Z. Dershowitz made oral submissions on the matter of JCE together with Mr. Alan M. Dershowitz, using part of the time allocated to the Appellant for submission of his oral presentation.[7] Consequently, the Appeals Chamber finds that it has already implicitly authorized Mr. Nathan Z. Dershowitz to act as de facto co-counsel on the matter of JCE together with Mr. Alan M. Dershowitz. Furthermore, the Appeals Chamber is satisfied that the Appellant has shown that Mr. Nathan M. Dershowitz is sufficiently familiar with the matters related to JCE to conduct the interview with Mr. Karadžić on this issue,[8] having already made oral submissions on the matter of JCE during the appeals hearing and having worked together with Mr. Alan M. Dershowitz on the matter.[9]

[6] See correspondence from the Registry to counsel Mr. Alan M. Dershowitz by which the Registry accredited Mr. Nathan M. Dershowitz to Mr. Alan M. Dershowitz as his legal consultant, 15 August 2008, with reference to Request for Accreditation of Nathan M. Dershowitz as a Member of Momčilo Krajišnik’s Defence Team, 13 August 2008.

[7] See AT 191 et seq. See also Notice of Appearance, 12 August 2008, with reference to Scheduling Order for Appeals Hearing, 18 July 2008.

[8] This is of course subject to the fulfilment of all prerequisites under Rule 44 of the Rules by Mr. Nathan Z. Dershowitz.

[9] Momčilo Krajišnik’s Motion for Permission for Nathan Z. Dershowitz to Act as Counsel with Alan M. Dershowitz and for Extension of Time, 2 September 2008, para. 3.

RECALLING that Article 19(4)(d) of the Statute of the Mechanism provides for an alternative between the right to self-representation and the right to legal assistance, but does not entitle an accused or an appellant who is represented by counsel to self-representation;

[…]

RECALLING that assigned counsel “shall be responsible for all aspects of defence of [...] accused before the Mechanism”;[2]

CONSIDERING, however, that the Appeals Chamber may exercise its discretion to allow persons other than counsel and co-counsel to make representations before it;

[…]

FINDING that it is in the interests of justice to grant Karadžić the right of audience before the Appeals Chamber to present arguments related to the Appeal Grounds;

CONSIDERING that this finding is without prejudice to the opportunity which will be afforded to Karadžić to make a brief personal address to the Appeals Chamber at the end of the hearing of the appeals;